decided: July 6, 1976.
COMMONWEALTH OF PENNSYLVANIA
JAMES PRESTON KICHLINE, APPELLANT
Donald F. Spang, Brett A. Huckabee, Reading, for appellant.
Grant E. Wesner, Deputy Dist. Atty., Reading, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., concurs in the result. Eagen, J., filed a dissenting opinion.
[ 468 Pa. Page 270]
OPINION OF THE COURT
On December 7, 1973, appellant James Preston Kichline was convicted after a jury trial of murder in the
[ 468 Pa. Page 271]
first degree. The trial court denied post-verdict motions and imposed judgment of sentence of life imprisonment. On this direct appeal,*fn1 appellant contends that he is entitled to a new trial because of numerous pretrial and trial errors. Finding none of his arguments persuasive, we affirm the judgment of sentence.
I. SUFFICIENCY OF THE EVIDENCE
This Court is required to review the sufficiency of the evidence to sustain a conviction in every case of murder in the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964). We have often stated the test to be applied:
"[W]hether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt."
Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); see Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972).
In the late afternoon of April 22, 1973, a gas station in Lehigh County was robbed and the gas station attendant abducted. Police discovered spent cartridges at the scene of the robbery. The following day, the attendant's body was found covered with a blanket in a deserted area of Berks County. Medical examiners established that gunshot wounds were the cause of death. Appellant surrendered to police on April 25, 1973, and confessed to the robbery-murder. He stated that he had driven his father's car and had used a blanket found in the trunk of the car to cover the body, that he shot the victim shortly
[ 468 Pa. Page 272]
after abducting him, and that he had used his brother's gun, which he later hid in a hotel room. Police verified the details of appellant's confession and located the weapon. A ballistics expert testified that both the fatal bullets and the cartridges found at the gas station had been fired from the gun found in the hotel room.
The statute applicable to this case defines murder in the first degree as follows:
"All murder which shall be perpetrated by means of . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any . . . robbery . . . shall be murder in the first degree."
Act of June 24, 1939, P.L. 872, § 701, as amended (formerly codified as 18 P.S. § 4701.*fn2 The evidence here is sufficient for the jury to conclude beyond a reasonable doubt that appellant killed decedent in the perpetration of a robbery.
Appellant argues that the facts of this case preclude a conviction of felony-murder because, according to appellant, he had already completed the robbery and fled the scene of the crime before the homicide was committed. The trial judge refused appellant's point for charge which incorporated this theory.
In order for the felony-murder rule to apply, there must be "'such actual legal relationship between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it.'" Commonwealth v. Kelly, 333 Pa. 280, 285-86, 4 A.2d 805, 807 (1939) (quoting 13 R.C.L. § 148); accord Commonwealth v. Robinson, 450 Pa. 145, 147-48, 299 A.2d 220, 222 (1973). Thus, appellant may be found guilty of felony-murder if there
[ 468 Pa. Page 273]
was "no break in the chain of events" between the killing and the robbery such that the homicide "had an ultimate relation [to] and close connection with the felony." Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240, 242 (1951). Accord Commonwealth v. Alston, Pa. , 317 A.2d 229, 232 (1974); Commonwealth v. Kelly, supra at 280, 4 A.2d at 805. As Professor Perkins stated:
"Under the prevailing view if the killing resulted from the perpetration of the design it falls within the rule even if the felony itself had been completed before the fatal blow was struck."
R. Perkins, Criminal Law at 42 (2d ed. 1969); see W. LaFave and A. Scott, Criminal Law § 71 (1972).
The evidence presented here was sufficient for the jury to find that there was no break in the chain of events and that the homicide resulted from and was closely connected to appellant's design to perpetrate a robbery. Therefore, the trial court properly refused appellant's point for charge, and appellant could have been found guilty of murder in the first degree based upon a felony-murder theory.
II. CHANGE OF VENUE
Appellant, relying on Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973), claims that he was denied a fair trial because of prejudicial pretrial publicity. We do not agree.
Dispositions of motions for a change of venue are within the sound discretion of the trial court. Commonwealth v. Powell, 459 Pa. 253, 258, 328 A.2d 507, 510 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 141, 318 A.2d 680, 683, appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Swanson, 432 Pa. 293, 296, 248 A.2d 12, 14 (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483
[ 468 Pa. Page 274]
(1969). In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of appellant's guilt or innocence as a result of the pretrial publicity. Commonwealth v. Powell, supra; Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 64 (1971); Commonwealth v. Swanson, supra. In some cases the publicity in the community may be so pervasive and inflammatory that this Court will assume that the jury was biased. Commonwealth v. Pierce, supra; see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.2(c) (1966). In any case in which a juror was found or assumed to be prejudiced, the trial court would abuse its discretion if it denied a motion for a change of venue. Commonwealth v. Pierce, supra; see Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).
Here, the trial court stated that "the jury selected was completely fair and unbiased and was properly selected." The record fully supports the trial court's holding. Appellant produced numerous newspaper articles. However, only eight articles published in the Reading Times and the Reading Eagle were circulated in Berks County, where the trial took place. Articles relied on by appellant published in Northampton County newspapers, the county where appellant had been released from prison on a furlough program, and in Lehigh County newspapers, where the alleged robbery took place, had only a limited circulation in Berks County and could not have had a prejudicial effect on a Berks County jury.*fn3
[ 468 Pa. Page 275]
The trial court found that the Reading Times and Reading Eagle articles were restrained in their coverage of appellant's case: "[W]e cannot find that any of the items published were inflammatory in nature." Most of the coverage concerned the ongoing police investigation and the surrender of appellant to police. Although the reporting was primarily factual in nature, "unidentified" officials gave appellant's confession to reporters, and it was relied on in three articles to describe appellant's movements during and after the crime. Appellant's criminal record and his participation in the prison furlough program were also referred to in several newspaper articles. In addition, a policeman, the president of the local chapter of the fraternal order of police, who was not involved in the investigation of this case, was quoted in one article, criticizing appellant's furlough program.
Although pretrial publicity of an alleged confession and of prior criminal offenses is prejudicial to a defendant, we cannot conclude that, in the circumstances of this case, such publicity was so "inherently prejudicial" as to deny appellant a fair trial. Compare Sheppard v. Maxwell, supra; Rideau v. Louisiana, supra; Commonwealth v. Pierce, supra.*fn4 The articles were published six
[ 468 Pa. Page 276]
months before trial, and the publicity had ceased after appellant's preliminary arraignment. Because the publicity in Berks County was neither inflammatory nor extensive, this lengthy delay "was [sufficient] time for the effect of these news stories to fade from the minds of prospective jurors." Commonwealth v. Powell, supra, 459 Pa. at 260, 328 A.2d at 511 (one year delay); see Commonwealth v. Nahodil, 462 Pa. 313, 341 A.2d 91 (1975) (six month delay); Commonwealth v. Stoltzfus, 462 Pa. 55, 337 A.2d 873 (1975) (one year delay); Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975) (eleven month delay); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975) (five month delay); Commonwealth v. Hoss, supra (five month delay).
Appellant argues that these articles disclosed violations of the standards enunciated in Pierce*fn5 and that these violations require a grant of a new trial. He supports his claim by arguing that his confession and his criminal record must have been given to the media by the police and by relying on the publicized criticism of the furlough program by one police officer.
Although there may have been violations of the Pierce guidelines, this showing alone does not give appellant
[ 468 Pa. Page 277]
an automatic right to a change of venue. As we stated in Nahodil :
"In Pierce, we condemned and proscribed the practice of police and law enforcement agents in releasing to the news media the existence and contents of statements or confessions given by those accused of crime. However, a violation of our ruling in Pierce does not necessarily mandate a new trial. It must also appear that the news accounts were so 'inherently prejudicial' that the possibility of a fair trial was questionable."
462 Pa. at 306, 341 A.2d at 93.*fn6
Nahodil is similar to this case. There, the police disclosed to the news media that the defendant had confessed. However, we found that the media coverage was not extensive and that there had been no further adverse publicity for the six months prior to trial. We held that this was sufficient time for the stories to fade from the minds of prospective jurors and declined to hold that the disclosure of the confession was "inherently prejudicial." Accord Commonwealth v. Dobrolenski, supra (police disclosed defendant's confession and criminal record); Commonwealth v. Douglas, supra (police disclosed defendant's criminal record).
Here, as in Nahodil, the publicity was not extensive and not highly inflammatory, there was a long period of delay between the Pierce violations and trial and the court found that an impartial jury could be empanelled.*fn7
[ 468 Pa. Page 278]
Appellant's motion for a change of venue was therefore properly denied.
Appellant's next contention is that the suppression court erred in denying his motion to suppress three confessions. Specifically, he alleges that he was so fatigued, nervous and upset during the interrogations that his confession was involuntary and his waiver of Miranda rights was invalid as a matter of law.
Appellant voluntarily surrendered to Quakertown police at 5:00 a. m., April 25, 1973. At 5:35 a. m. police read him his Miranda rights; appellant signed a waiver card and stated his desire to get his confession "over with." Interrogation began at approximately 6:00 a. m., and appellant's confession was transcribed in longhand by one of the interrogating officers. At 7:00 a. m. appellant signed both a second card waiving his Miranda rights and the handwritten confession. The confession was typed between 7:00 a. m. and 8:45 a. m., and appellant read, made minor corrections to, and signed the typed version at 8:45 a. m.
After police obtained these two confessions, they transported appellant to Lehigh County to be arraigned on the robbery charge.*fn8 The record is silent concerning events after arraignment until 4:05 p. m. that afternoon, when appellant was transported to the Berks County district attorney's office. He was read his Miranda rights, which he again waived in writing, and a second interrogation session began. At 4:45 p. m. appellant signed a longer version of his original confession, which contained many new details of his movements before and after the crime.
[ 468 Pa. Page 279]
Although there is no single litmus-paper test for determining the voluntariness of a confession, it must be established that the decision to speak was a product of a free and unconstrained choice of its maker. See Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Commonwealth v. Ritter, 462 Pa. 214, 340 A.2d 433 (1975); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of the police toward defendant; defendant's physical and psychological state; and all other conditions present which may serve to drain one's power of resistance to suggestion or to undermine one's self-determination. See Culombe v. Connecticut, supra 367 U.S. at 602, 81 S.Ct. at 1879; Commonwealth v. Boyd, 461 Pa. 17, 30-32, 334 A.2d 610, 617-18 (1975); Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth v. Simms, 455 Pa. 599, 602-03, 317 A.2d 265, 267 (1974).
Moreover, when, as here, the question of voluntariness involves degrees of psychological coercion, "the most careful attention will be afforded to any facts, circumstances, or events tending to overbear an accused's will." Commonwealth v. Simms, supra at 603, 317 A.2d at 267; see Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975); Commonwealth ex rel. Butler v. Rundle, supra 429 Pa. at 149, 239 A.2d at 430 (1968). Defendant may be so emotionally and psychologically distraught or unbalanced that this factor alone may make his confession involuntary. Commonwealth v. Ritter, supra.
[ 468 Pa. Page 280]
Appellant also challenges the validity of his waiver of constitutional rights. In reviewing this claim, this Court must determine "whether, considering all the attending circumstances, . . . the accused understood his rights and knowingly, intelligently, and voluntarily waived them." Commonwealth v. Klinger, 461 Pa. 606, 612, 337 A.2d 569, 571 (1975); see Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Commonwealth v. Bullard, 465 Pa. 341, 346, 350 A.2d 797, 799 (1976). Thus, the record must show not only that adequate warnings were given but also that the defendant understood the import of those warnings. See Miranda v. Arizona, supra; Commonwealth v. Cobbs, 452 Pa. 397, 403, 305 A.2d 25, 28 (1973); Commonwealth v. Goldsmith, 438 Pa. 83, 85, 263 A.2d 322, 323 (1970).
The suppression court, which hears and evaluates the testimony, is required to make findings of fact and conclusions of law. Pa.R.Crim.P. 323(i); Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). The court must determine whether the Commonwealth has established by a preponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing and intelligent. See Commonwealth v. Bullard, supra 465 Pa. at 346, 350 A.2d at 799; Commonwealth v. Goodwin, supra 460 Pa. at 521, 333 A.2d at 895; Commonwealth v. Jones, 457 Pa. 423, 430, 322 A.2d 119, 124 (1974); Commonwealth ex rel. Butler v. Rundle, supra. Our responsibility on review is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Goodwin, supra 460 Pa. at 521, 333 A.2d at 895; see Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974). In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for
[ 468 Pa. Page 281]
the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Culombe v. Connecticut, supra 367 U.S. at 604, 81 S.Ct. at 1878; Commonwealth v. Goodwin, supra 460 Pa. at 521, 333 A.2d at 895; Commonwealth ex rel. Butler v. Rundle, supra 429 Pa. at 149-50, 239 A.2d at 430.
Applying these standards to appellant's case, we conclude that his confessions were voluntary and his waiver knowing and intelligent. Although it is uncontradicted that he was tired and nervous, felt ill and had been drinking the night before, these factors alone are insufficient to negate findings of a voluntary confession and a valid waiver of constitutional rights. See Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972); Commonwealth v. Goodwin, supra. There is no evidence in this record suggesting that the police exploited appellant's emotional state. Appellant voluntarily surrendered and indicated a desire to confess immediately. Police testified that appellant fully understood his rights, that he was not coerced or physically restrained, that he was attentive, that he did not appear intoxicated and that he did not have alcohol on his breath. He read his confessions, made minor corrections, and restated his desire to get his confession "over with" several times during the course of the day. Thus, this record supports the suppression court's holding that the Commonwealth met its burden of proving the voluntariness of appellant's confessions and the validity of appellant's waiver of constitutional rights.
Appellant argues that his confessions were not voluntary and his waiver of constitutional rights not knowing and intelligent because, near the end of the last interrogation session, he stated his need for rest and his desire to end the session. However, the record shows that he changed his mind and stated his desire to finish his confession at that time. He does not argue that his
[ 468 Pa. Page 282]
request was an assertion of his constitutional right to remain silent. See Miranda v. Arizona, supra 384 U.S. at 473-75, 86 S.Ct. at 1627-28. Nor does the record support such a contention. Appellant, in response to questions by the suppression judge, made clear that he never changed his decision to confess:
"THE COURT: You never asked them to stop and say you won't answer questions anymore? You never said that?
THE WITNESS: I never said that.
THE COURT: So you answered all of their questions without at any time refusing to continue to answer questioning?
THE WITNESS: Yes, I went through with it."
Appellant's mere statement that he was fatigued does not establish that appellant's need for rest was so acute that his confessions were involuntary and his waiver unknowing and unintelligent.
The suppression court's conclusion that the Commonwealth met its heavy burden of proving the voluntariness of appellant's confession and the validity of his waiver of his constitutional rights is fully supported in this record.
IV. INTOXICATION DEFENSE
Appellant, relying on Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), argues that the trial court erred in holding inadmissible certain expert psychiatric testimony. The psychiatrist would have testified that, because of appellant's alcoholism, he could not have formed the specific intent to kill necessary for a conviction of murder in the first degree*fn9 if he had been intoxicated
[ 468 Pa. Page 283]
at the time of the homicide.*fn10 The trial court held that the psychiatrist could not testify unless appellant presented evidence of actual intoxication.
Until recently, psychiatric testimony, because of its supposed unreliability, was disfavored in Pennsylvania unless offered to show that a defendant was criminally insane under the M'Naghten rule. See, e. g., Commonwealth v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971); Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966).
In McCusker, however, this Court held psychiatric testimony admissible to show that a defendant charged with murder acted in the heat of passion. We stated that our holding was "but a belated recognition of the tremendous advancements made in the field of psychiatry during the last several decades." 448 Pa. at 385, 292 A.2d at 287. We noted that psychiatric evidence comes from a "recognized and important branch of modern medicine" and that the science of psychiatry "is capable of offering quality expert guidance" to the jury. Id. at 387, 392, 292 A.2d at 289, 291. The effect of McCusker was to put psychiatric testimony on a footing with other evidence. The threshold issue, therefore, in determining the admissibility of such evidence, was whether the proffered testimony was sufficiently relevant and probative under traditional evidentiary rules. Because we found that these standards
[ 468 Pa. Page 284]
were satisfied in McCusker, we held that the trial court's holding that the psychiatric evidence was inadmissible was prejudicial error:
"[A]ny evidence -- lay or psychiatric -- pertinent to [the defense of heat of passion] should be admissible. The principal vice of rejecting psychiatric testimony, as the trial court did here, is that it excludes from the consideration of the factfinders evidence of probative value vital to a determination of defendant's state of mind."
448 Pa. at 391, 292 A.2d at 290-91.
Applying the McCusker analysis to the facts of this case, we must determine whether the testimony was relevant and probative to an issue in the case. This requires a two-step analysis:
"It must be determined first if the inference sought to be raised by the evidence bears upon a matter in issue in the case and, second, whether the evidence 'renders the desired inference more probable than it would be without evidence.'"
Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975) (quoting McCormick, Evidence § 185 (2d ed. E. Cleary (1972)); cf. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. McCusker, supra.
Evidence of defendant's intoxication is relevant in a first degree murder case because it may show that he did not have the requisite specific intent to kill. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975); Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970). Appellant's psychiatrist would have testified that, because of appellant's alcoholism, he could not have formed that intent if he had been intoxicated. Thus, if appellant had presented evidence that he had
[ 468 Pa. Page 285]
been intoxicated at the time of the homicide, the psychiatric testimony may have been admissible because it may have been relevant in determining appellant's actual state of mind. Cf. Commonwealth v. McCusker, supra; Commonwealth v. Stewart, supra.
However, the record is devoid of any evidence that appellant was in fact intoxicated at the time of the homicide.*fn11 Thus, that issue was not before the jury. See Commonwealth v. Rose, supra. The psychiatric testimony concerned appellant's state of mind while intoxicated and its relevance was conditional on some evidence of intoxication. Because appellant was unable to establish the factual foundation for his proffered evidence, it does not "bear upon a matter in issue in the case," and the trial court properly held that it was inadmissible.
[ 468 Pa. Page 286]
Our holding is buttressed by considering appellant's final argument. He contends that the trial court erred in refusing to instruct the jury concerning his alleged intoxication. However, before the court must instruct the jury on an intoxication defense, there must be evidence in the record to bring that issue into the case. Commonwealth v. Rose, supra 457 Pa. at 389-390, 321 A.2d at 884. Here, appellant failed to present sufficient evidence, and the trial court correctly refused the proposed instruction. Thus, since appellant was not entitled to an intoxication instruction, the psychiatrist's testimony, which assumed evidence of intoxication, would have been irrelevant to the jury's deliberation.
Judgment of sentence affirmed.
EAGEN, Justice (dissenting).
While I have great respect for the wisdom and judgment of the distinguished jurist who presided in the instant trial proceedings, I am convinced it was an abuse of discretion to deny a change of venue.
In my view, Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), is controlling. That the pretrial publicity in this case was "inherently prejudicial" and jeopardized Kichline's right to a fair trial to me is beyond question. Under such circumstances, whether or not any of the jurors who decided the case had any prior opinions as to the accused's guilt or innocence is irrelevant.
I would award a new trial.